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Gallegos v. Las Lomas Apartments Limited Partnership

United States District Court, D. New Mexico

August 28, 2018

JOEY M. GALLEGOS, Plaintiff,
v.
LAS LOMAS APARTMENTS LIMITED PARTNERSHIP, a New Mexico Limited Partnership, Defendant.

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on the Motion to Dismiss for Failure to State a Claim filed by Las Lomas Apartments Limited Partnership (“Las Lomas”). [Doc. 5]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the Motion is well-taken and will be granted.

         BACKGROUND

         On October 24, 2013, during the course of his duties as a New Mexico State Police trooper, Plaintiff Joey M. Gallegos went to the Las Lomas Apartments, Apartment No. 323 (the “Apartment”), in order to execute a warrant against Rogelio Cisneros-Chavez. [Doc. 1-2, ¶ 3]. While in the performance of his duties, Plaintiff was shot and seriously and critically wounded by Mr. Cisneros-Chavez. Id.

         The Apartment was leased to Angelica Romero, Mr. Cisneros-Chavez's mother. Id., ¶ 4. Defendant Las Lomas, through its management, was aware that Mr. Cisneros-Chavez was not an authorized resident of the Los Lomas Apartments, and was also aware of his frequency on the premises, his residency there, and of his violent nature and criminal record. Id., ¶ 5. Defendant had previously removed him from the premises. Id

         Based on the October 24, 2013 incident, on October 23, 2016, Plaintiff filed suit against Defendant in the First Judicial District Court, County of Sandoval, State of New Mexico. [Doc. 1-2]. On January 11, 2017, Defendant removed the case to federal court based on diversity of citizenship. [Doc. 1].

         In the Complaint, Plaintiff alleges that Defendant negligently failed to keep its premises safe for his use in the performance of his duties as a New Mexico State Police trooper, and as a result, he was shot and wounded by Mr. Cisneros-Chavez while trying to execute the warrant against him. Specifically, the Complaint alleges that Defendant breached its duty of care by: (a) permitting Mr. Cisneros-Chavez to come on the premises; (b) not removing him from the premises; (c) permitting Ms. Romero and others to continue to inhabit the Apartment in spite of the danger their presence on the premises presented to others because of the use of the Apartment by a known violent criminal; and (d) failing to provide adequate security to monitor the premises at all times and keep dangerous persons, and especially Mr. Cisneros-Chavez, off the premises. Id. at ¶ 6.

         On January 20, 2017, Defendant filed a Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). [Doc. 5]. Defendant opposes the motion. [Doc. 11].

         LEGAL STANDARD

         Under Rule 12(b)(6), a Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency of a complaint is a question of law, and when considering a Rule 12(b)(6) motion, the Court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citation omitted), cert. denied, 558 U.S. 1148 (2010).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Twombly, 550 U.S. at 570; Mink v. Knox 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims. Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted). The Tenth Circuit has explained,

“[p]lausibility” in this context must refer to the scope of the allegations in a complaint: If they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed ...

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